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Clemmons v. Lowe's Home Centers, Inc.

Supreme Court of South Carolina

June 28, 2017

Henton T. Clemmons, Jr., Employee, Petitioner,
v.
Lowe's Home Centers, Inc. -Harbison, Employer, and Sedgwick Claims Management Services, Inc., Carrier, Respondents. Appellate Case No. 2015-001350

          Heard September 21, 2016

         ON WRIT OF CERTIORARI TO THE COURT OF APPEALS Appeal from the Workers' Compensation Commission

          Preston F. McDaniel, of McDaniel Law Firm, of Columbia, for Petitioner.

          Helen F. Hiser, of Mount Pleasant, and Kelly F. Morrow, of Columbia, both of McAngus Goudelock & Courie, for Respondents.

          Donald W. Beatty C.J., John W. Kittredge J., Kaye G. Hearn J., Costa M. Pleicones A.J., James E. Moore A.J.

         ORDER

         Respondents filed a petition for rehearing and Petitioner filed a return in opposition. After careful consideration, we deny the petition for rehearing, withdraw the former opinion, and substitute the attached opinion in its place.

          HEARN JUSTICE

         Petitioner Henton T. Clemmons, Jr. injured his back and neck while working at Lowe's Home Center in Columbia and brought a claim for disability benefits under the scheduled-member statute of the South Carolina Workers' Compensation Act (the Act). Although all the medical evidence indicated Clemmons had lost fifty percent or more of the use of his back, the Workers' Compensation Commission awarded him permanent partial disability based upon a forty-eight percent impairment to his back. The court of appeals affirmed. Clemmons v. Lowe's Home Ctrs, Inc.-Harbison, 412 S.C. 366, 772 S.E.2d 517 (Ct. App. 2015). We now reverse and hold the Commission's finding of only forty-eight percent loss of use was not supported by substantial evidence.

         FACTUAL/PROCEDURAL BACKGROUND

         In September 2010, Clemmons was assisting a customer at Lowe's when he slipped and fell, severely injuring his back. Clemmons visited neurological specialist, Dr. Randall Drye, and was diagnosed with a herniated disc which caused severe spinal cord compression and necessitated immediate surgery. Dr. Drye removed Clemmons' herniated disc and fused his C5 and C7 vertebrae by screwing a rod into his spine. After surgery, Clemmons underwent extensive inpatient and outpatient physical rehabilitation; however, he continued to experience pain in his neck and back, as well as difficulty balancing and walking.

         Clemmons filed a workers' compensation claim to recover medical expenses and temporary total disability benefits. Lowe's admitted Clemmons had suffered an accepted, compensable injury in the course of his employment and agreed to pay temporary total disability benefits until Clemmons reached maximum medical improvement (MMI) or returned to work.

         In June 2011, Dr. Drye determined Clemmons had reached MMI and, per the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides), assigned Clemmons a whole-person impairment rating of twenty-five percent based on his cervical spine injury, which converts to a seventy-one percent regional impairment to his spine. Dr. Drye also determined Clemmons could return to work at Lowe's subject to certain permanent restrictions.[1] A few months later, Lowe's agreed to accommodate Clemmons' restrictions and permitted him to return to his previous position as a cashier.

         In June 2012, Dr. Drye conducted a follow-up evaluation and reached the same conclusion he had a year earlier-that Clemmons had reached MMI and required the same permanent work restrictions. Thereafter, Lowe's requested a hearing before the ...


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